Avoid lawsuits; apply residency policies equally

Charity Cicardo

A few years ago a lovely waterfront mobile home community in Palmetto, Florida found themselves facing a discrimination lawsuit. The board of directors tried to keep out a particular person who wanted to move in to the community. He met all of the same criteria as anyone else moving in, except with one difference--his nationality was African-American. The Florida attorney general’s office filed a civil rights lawsuit against the homeowners association seeking damages for the person who was denied application, according to the Sarasota Herald-Tribune. We read stories like this on occasion and shake our heads, asking ourselves how could a community get itself into this predicament in this day and age. Yet, when reviewing new resident interview procedures for communities, I often see “rules” that are either in place or more likely not in place that can get communities in trouble. Here are some general guidelines on how to treat potential residents. These are common sense suggestions. It is always wise to seek the counsel of an attorney who specializes in homeowner association law when dealing with residency policies. 1. First you must treat everyone equally. It doesn’t matter if the person’s skin color is blue and he hails from Mars. Every potential resident who comes through management’s door should be treated the same, fill out the same forms, be asked the same questions. No exceptions and that includes the brother or sister of the president of the board of directors who wants to move into the community. In the above scenario, the community required a background and credit check of the individual who was black when that was not a requirement for residency. 2. If your community is an over-age 55 park, then your rules should have a minimum age so that it is very clear what the age requirements are within the community. Also having the over age 55 exemption to the Fair Housing Law posted or at least readily available for managers and board members to review is important. You can print a copy here. 3. You should require at minimum a background check of criminal history for every person moving into the community as many communities do not allow a person who has committed a felony to move in. Again, this rule must be applied equally to everyone with no exceptions. It doesn’t matter if the minister of a church wants to move in, the same background check should be completed. 4. Credit checks may be an option depending on the make up of your community and the type of problems you have seen in the past. If you’ve had a lot of people who had to move out due to lack of payment of the monthly lot rent or maintenance fee, then implementing a credit check for all new potential residents might be wise. One potential issue with credit checks is determining what information to allow. The purpose for a credit check is to insure that the person will pay the monthly lot rent or maintenance fee. A person may have had a bankruptcy in the past, but today has a job with steady monthly income. Do you allow this person into the community or not? It would be wise to seek guidance of an attorney to determine how to apply the credit check information. If a credit check is mandatory, remember it must be applied and interpreted equally to all potential residents who apply for residency. 5. Each potential new resident should fill out a residency application that is kept in that person’s file. The community’s attorney can assist with drafting the application to insure that no discriminatory language is used. 6. New residency policies apply not only to the homes that may be owned by the community, but to residents who are selling their homes. Make sure that all residents in the community know and understand the residency policies. In addition, these rules should be part of your community’s rules and regulations. You can even post the residency policies in the manager’s office or clubhouse to insure that no one can say they didn’t know or understand. 7. Use the residency application process as a way to inform potential new residents of particular rules they should be aware of. Whenever I conducted a residency interview, I made sure that the potential new resident understood the pet policy (they would have to sign a form saying they understood it), and review other rules such as parking on the street, noise issues, and how long a guest can visit. This way a new resident, who rarely reads the rules and regulations prior to moving in, truly understands what can and cannot occur within the community and whether they believe they will be happy living there. 8. Don’t let that one board member who is bigoted or believes fair housing laws don’t apply to your community run the show. All board members should understand their legal responsibility to all other homeowners. Whatever their personal bias, as board members they must do what is best for the community and legally uphold the laws of the state, county and community. If you believe you have too many board members who don’t understand their legal obligations, have your attorney do a brief presentation on board member duties and responsibilities. This normally gets their attention. 9. The residency application process should be a welcoming gesture not a dreaded combative procedure that makes a potential resident feel like they are on the firing line. Instead, the interview process should let the new resident know you do apply rules equally, you do care about the people who are moving into the community and you do care about the well being of those already in the community. When conducted professionally and with the interest of both the new resident and current residents in mind, the residency application process can be a win-win to both parties. 10. Many communities have a resident’s committee which does the “interview” with a potential new resident. Resident committees are fine, but they need a training session with either management or an attorney on what to say or questions to ask and understand that the same questions should be asked of all. Too often resident committees ask questions of a potential resident that have nothing to do with moving into the community or are potentially discriminatory in nature. (Example: “Have you served in the military? We really like to see people who have been in the military move into the community.” Although this statement appears innocent in nature, if this is the formal review process, a potential resident may believe that only military families are welcomed in the community.) In my experience, a successful interview process is this: Have management conduct the formal resident interview and review rules and regulations, then have the resident’s committee discuss the social aspects and benefits of living in the community and the surrounding area if the potential resident is new to the area. The committee is more relaxed and in turn the potential resident gets to see how residents truly interact with one another and how “welcoming” the community will be.